Gujarat High Court
Hasmukhbhai Chhaganbhai Patel vs State Of Gujarat Thro Ld.Principal ... on 1 May, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
C/SCA/14484/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14484 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE P.P.BHATT
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment?
2 To be referred to the Reporter or not? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the constitution of India, 1950 or
any order made thereunder?
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HASMUKHBHAI CHHAGANBHAI PATEL
Versus
STATE OF GUJARAT THRO LD.PRINCIPAL SECRETARY
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Appearance:
MR NV GANDHI(1693) for the PETITIONER(s) No. 1,2
for the RESPONDENT(s) No.
11.1.1,11.1.10,11.1.11,11.1.12,11.1.2,11.1.3,11.1.4,11.1.5,11.1.6,11.1.7,11.1
.8,11.1.9
MR JK SHAH, AGP(1) for the RESPONDENT(s) No. 1
MR H M JADEJA(2437) for the RESPONDENT(s) No.
10,11.1,11.2,12.1,12.2,12.3,12.4,13.1,13.2,13.3,14,15,3.1,3.2,3.3,4,5,6,7,8,9
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 2
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Page 1 of 8
C/SCA/14484/2011 JUDGMENT
CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 01/05/2018
ORAL JUDGMENT
1. By way of present petition, the petitioners have prayed for issuance of appropriate writ / order or direction quashing and setting aside the impugned order dated 30.07.2011 passed by the Principal Secretary, Revenue Department (Appeals), Gujarat State in Revision Application No. HKP/ST/80/10 whereby, the respondent No. 1 has rejected the said revision application. The petitioners have also prayed for quashing and setting aside the order dated 26.08.2010 passed by the District Collector, Surat in RTS/Suo Moto/Revision Case No. 12/2009, which is corrected vide order dated 01.10.2010 by which, the Collector, Surat quashed and set aside the order passed by the Mamlatdar, Choryasi dated 22.12.2004.
2. Brief facts giving rise to the present petition are that agricultural lands of Account No. 21(1), admeasuring 708 sq. mtrs., bearing survey No. 13/1 having block No. 34 and (2) admeasuring 708 sq. mtrs., bearing survey No. 13/2 having block No. 35, situated at: mouje Bharathana (Vesu), Taluka & District: Surat was purchased by the petitioners by two registered Sale Deeds dated 30.12.2000. The respondent Page 2 of 8 C/SCA/14484/2011 JUDGMENT authority had given effect of the Government Notification dated 26.12.1980 whereby, the provisions of Bombay Land Revenue Code were amended by Bombay Land Revenue (Gujarat Second Amendment) Act, 1980 vide mutation entry No. 832. On 22.12.2004, the Mamlatdar, Choryasi was pleased to direct removal of the aforesaid lands from the revenue entry No. 832 and further directed to enter the mutation entry in respect of the said Sale Deeds in the record of rights in accordance with the rules. Thereafter, on 15.09.2009, the said order of the Mamlatdar was taken into suo motu revision by the Collector, Surat and by order dated 26.08.2010, the order dated 22.12.2004, passed by the Mamlatdar, came to be quashed and set aside. Against the said order of Collector, Surat, the petitioners preferred revision application before Principal Secretary (Appeals). The said revision application also came to be rejected by impugned order dated 30.07.2011, being aggrieved of which, the petitioners have preferred the present petition.
3. Heard, learned advocate Mr. N. V. Gandhi for the petitioners and learned Assistant Government Pleader Mr. J. K. Shah. Learned advocate Mr. H. M. Jadeja states that he has instructions to appear on behalf of the heirs and legal representatives of deceased respondent Page 3 of 8 C/SCA/14484/2011 JUDGMENT No. 11.1. Appearance shall be filed in due course. 3.1 The learned advocate for the petitioners submitted that present petition has been filed mainly on the ground that the order passed by the Principal Secretary (Appeals) is beyond the period prescribed under Sub-section (4) of Section 73AA of the Code. He submitted that as per the said provision, the powers can be exercised within a period of three years, but, in the instant case, admittedly, the powers have been exercised by the concerned authority after lapse of three years, which is revealed from the impugned orders themselves. The learned advocate for the petitioners submitted that the issue involved in the case on hand is squarely covered by a decision of Division Bench of this Court headed by the Hon'ble Chief Justice in the case of Somabhai Sharubhai Gamit Vs. State of Gujarat, reported in 2017 (0) AIJEL-HC 238520 and accordingly, he urged this Court to allow the present petition and quash and set aside the orders impugned in the present petition.
4. As against this, the learned Assistant Government Pleader as well as the learned advocate for the private respondents resisted the present petition, however, they have fairly conceded the aforesaid proposition Page 4 of 8 C/SCA/14484/2011 JUDGMENT of law.
5. Regard being had to the submissions advanced and in the facts and and circumstances of the case and in consideration of the aforesaid decision rendered by the Division Bench of this Court as well as the provision of law, more particularly, Sub-section (4) of Section 73AA of the Code, in the opinion of this Court, the aforesaid decision squarely applies to the case on hand and hence, relevant portion of the same is extracted hereunder:
"11. Having heard the learned advocates appearing for the parties and having gone through the materials produced on record as well as the provisions on which reliance is placed by the learned advocates appearing for the respective parties, it transpires that the respondent No.3 has constructed the house on the plot allotted to him by the Co- Operative Housing Society. Non-agricultural permission was granted by the competent authority to the society. After construction of the house, the respondent No.3 executed the sale deed on 8.11.2002 in favour of the petitioner No.2. After a period of more than two years and seven months i.e. on 24.6.2005, the respondent No.3 submitted an application before the Collector for grant of permission under the provisions of section 73AA of the Code. The Collector considered the provisions of the Code and thereafter recorded statements of the respondent No.3 as well as the petitioner No.2 and was of the opinion that before executing the sale deed in favour the petitioner No.2, the respondent No.3 has not obtained prior permission of the Collector and, therefore, there is violation of the provisions contained in section 73AA of the Code. He, therefore, passed an order of forfeiture of the property in question. If the aforesaid order is carefully examined, it is revealed that the said order came to be passed by the Collector on the application dated 24.6.2005 submitted by the respondent No.3 by which, the respondent No.3 sought permission to sell the property in Page 5 of 8 C/SCA/14484/2011 JUDGMENT question. No application was submitted by the respondent No.3 under the provisions of section 73AA(4) of the Code. It is further revealed that the Collector has not followed the procedure contemplated under sub-section (4) of section 73AA of the Code. At this stage, we would like to refer to provisions contained in section 73AA(4) of the Code, which reads as under:
Section 73AA. Restriction on transfer of occupancies of tribals to tribals or non-tribals.- (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) Where a tribal-
(a) in contravention of sub-section (1) of this section, or of sub-
section (1) of section 73A or of any other law for the time being in force, transfers his occupancy to any person other than a tribal (hereafter in this section and in section 73AB referred to as the non- tribal) at any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment) Act, 1980 (Guj.37 of 1980). (hereinafter in this section referred to as the said date); or
(b) in contravention of sub-section (1) of section 73A or of any other law for the time being in force has transferred his occupancy to a non-tribal at any time before the said date, the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo-motu at any time, or on a application made by the tribal transferor or his successor-in-interest at any time within three years from the said date or the date of such transfer, whichever is later, after issuing a notice to the transferee or his successor-in- interest as the case may be, to show cause why the transfer should not be declared void and after making such inquiry as he thinks fit, declare the transfer of such occupancy to be void and thereupon the occupancy together with the standing crops thereon, if any, shall vest in the State Government free from all encumbrances.
12. From the aforesaid provision, it is clear that if there is violation of sub-section (1) of section 73AA of the Code or any other law for Page 6 of 8 C/SCA/14484/2011 JUDGMENT the time being in force, at the time of transfer of the occupancy to the person other than a tribal, the Collector can suo motu initiate proceedings for forfeiture of the property or the Collector can take action on the basis of the application submitted by the tribal transferor within a period of three years from the date of transfer. It is further revealed that such action can be initiated after issuance of notice to the transferee or the successor in interest asking him to show cause why transfer should not be declared as void. However, from the facts discussed hereinabove, it is revealed that the application was submitted by the respondent No.3 for grant of permission to transfer the property in question in favour of the petitioner No.2. However, no application was submitted by the respondent No.3 within the stipulated time limit for declaring the transaction as void nor the Collector has initiated suo motu proceedings for declaring the transaction as void, as stated in sub- section (4) of section 73AA of the Code. In that view of the matter, even if the contention of learned advocate, Mr. Qureshi appearing for the respondent No.3 that provision of section 73AA of the Code would be applicable to the constructed property is accepted, even then, the Collector has not followed the procedure prescribe under section 73AA(4) of the Code, thereby the Collector has committed an error while passing the impugned order dated 17.7.2008. The SSRD has also not considered the aforesaid important aspects of the matter and passed the impugned order dated 11.11.2016.
13. It is also required to be noted that in the meantime, the petitioner No.2 has also executed an Agreement to Sell in favour of the petitioner No.1 and the petitioner No.1 is in possession of the property in question since 2010 and the petitioner No.1 is a bona fide purchaser.
14. Thus, in the aforesaid facts and circumstances of the case, without going into further merits of the matter, we are inclined to entertain this petition. Accordingly, the impugned orders dated 17.7.2008 passed by the Collector and 11.11.2016 passed by the SSRD are hereby quashed and set aside. The petition is accordingly allowed. The respondent No.2-Collector is hereby directed to restore the possession of the property in question to the petitioner No.1 within a period of four weeks from today. Rule is made absolute." Page 7 of 8
C/SCA/14484/2011 JUDGMENT
6. In the above backdrop, without entering deep into the merits of the case on hand, this Court is disposed to allow the present petition and accordingly, it is allowed and the impugned orders, as aforesaid, are hereby quashed and set aside. Rule is made absolute accordingly. No order as to costs.
[ P. P. Bhatt, J. ] hiren Page 8 of 8